HomeMy WebLinkAbout1996-11-12; City Council; 13896; APPROVAL OF LICENSE AGREEMENT FOR COX CALIFORNIA PCS, INC. TELECOMMUNICATION FACILITY AT ELLERY RESERVOIR SITEr I
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DEPT. HD.
CITY ATTY.
CITY MGR.
CITY OF CARLSBAD - AG RI DA BILL a
AB# !!~ TITLE:
APPROVAL OF LICENSE AGREEMENT
FOR COX CALIFORNIA PCS, INC.
TE L EC OMM U N I CAT1 0 N FACILITY AT
ELLERY RESERVOIR SITE
MTG. 1 111 2/96
DEPT. CMWD
RECOMMENDED ACTION:
Staff recommends the City Council adopt Resolution No. 96 -38 /
owned by the City, and authorizing the City Manager to sign the Agreement.
ITEM EXPLANATION:
Cox California PCS, Inc. hereinafter for convenience referred to as “Cox”, has prc
construct, maintain and operate a telecommunication facility thereto, consisting of a
of seven base transmission units each approximately 3’ X 3’ X 5’ high with a monl
antennas as described in CUP 96-06 on City property known as the Ellery Reservoir
property is located at 2237 Janis Way, Assessor’s Parcel No. 167-540-52. (See map 1
approving thl
Agreement for Cox California PCS, Inc, telecommunication facility at the Ellery res1
If B” 1
Cox has secured the necessary Conditional Use Permit No. 96-06 from the City
commission and is attached as Exhibit “A”.
The License Agreement with “Cox” will be execufed upon approval of the City COU
Addendum allowing assignment of the agreement pursuant to the pending p,
formation as outlined in the Addendum, will be approved in concept by the City Coun
written documentation that the FCC License assignment to the Partnership is cons
the City Manager will be authorized to execute the Addendum approving the assig
behalf of the City.
FISCAL IMPACT:
Cox has agreed to pay the City One Thousand eight hundred ($1,800) per month or $2
the first year of this agreement.
The rent shall increase as follows:
Year 2: One thousand eight hundred and ninety dollars ($1,890) per month or $2
the second year.
Year 3: One thousand nine hundred eighty-five ($1,985) per month or $23,820 fo
third year.
Year 4: Two thousand eighty-five ($2,085) per month or $25,020 for the fourth ye
Year 5: Two thousand one hundred ninety ($2,190) or $26,280 for the fifth year.
These monies will be deposited to the District‘s Enterprise fund in Account No. 501 l
8420 as rental income.
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Agenda Bill No. /3,8? 6
Page 2
EXHIBITS:
1. Resolution No, 96-381
2. License Agreement between Cox California PCS, Inc. and the City of Carlsbad.
3. Attachment I Depiction of the Premises and Lessee’s improvements
4. Planning Commission Resolution No. 3975, Attachment 2
5. Planning Commission’s Notice of Decision re: CUP 96-06, Attachment 3
6. Location Map, Attachment 4
7. Secretary’s Certificate
8. Addendum to License Agreement
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RESOLUTION NO. 9 6 - 3 8 1
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA ACCEPTING LICENSE
AND THE CITY OF CARLSBhD
AGREEMENT BETWEEN COX CALIFORNIA PCS, INC.
Whereas, Cox California, PCS, Inc. wishes to enter into a License AgTeement for the property k
specifically identified as 2237 Janis Way, Assessor’s Parcel No. 167-540-52, commonly known as Ellery
herein after referred to as the “Property“;
WHERAS, the City Council of the City of Carlsbad, California, agrees to enter into a License A
with Cox California PCS, Inc.; and
WHEREAS, Cox California PCS, Inc. agrees to all obligations in the License Agreement and C1
and
WHEREAS, Cox California PCS, Inc. agrees to pay the City of Carlsbad without abatement, dec
offset the following rental on or before the first day of each month this agreement:
(a) One thousand eight hundred dollars ($1,800) per month for the first year of this agreen
commencing on the first of the month following the adoption of this agreement;
(b) Commencing on the anniversary date of this License Agreement in the years, 2,3,4 ar
monthly rent shall increase as follows:
Year 2: One thousand eight hundred and ninety dollars ($1,890) per month;
Year 3: One thousand nine hundred eighty-five dollars ($1,985) per month;
Year 4: Two thousand eighty-five dollars ($2,085) per month;
Year 5: Two thousand one hundred ninety dollars ($2,190) per month
WHEREAS, the Mayor hereby &rectors the City Manager to execute three original copies of th
Agreement: and
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Carlsbad, Califorr
follows:
1.
2.
That the above recitations are true and correct.
That the Council License Agreement attached hereto is hereby approved and the City
authorized and directed to execute it on behalf of the City.
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PASSED, APPROVED AND ADOPTED at a meeting of the City Council of the City of Carlsbai
the 12th day of November , 1996, by the following vote to wit:
AYES: Council Members Lewis, Nygaard, Hall and Finnila
NOES: None
ABSENT: Council Member Kul
ATTEST:
NZ, City Clerk
(SEAL)
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LICENSE AGREEMENT
This Agreement made between the City of Carlsbad, a Municipal corporation organiz
and existing under the State of California, hereinafter for convenience referred to as “City”, a
Cox California PCS, Inc., a California corporation, hereinafter for convenience referred to
“Cox” commencing upon its execution by Cox.
RECITALS
1. The City is the owner of real property more specifically identified as Assessc
Parcel # 167-540-52, commonly known as the Ellery Reservoir Site, and hereinafter referred to
the “Property”.
2. The City now uses the Property for a water storage reservoir operated by 1
Carlsbad Municipal Water District.
3. The Property is adequate in size to allow the installation of an antenna a
appurtenances thereto by Cox.
4.
Property.
Cox is desirous of installing a monopole antenna and appurtenances thereto on
‘
5. The City is willing to allow Cox to install the monopole antenna 2
appurtenances thereto under certain terms and conditions.
NOW, THEREFORE, City hereby grants to Cox a license to use the portion of 1
property that is depicted in Attachment 1 hereto (the “premises”) for the purposes and subject
the agreements and terms and conditions set forth herein:
LICENSEE’S OBLIGATIONS
Cox agrees to do the following:
1. Use the Property for the purpose of constructing, maintaining and operatin
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telecommunication facility thereto, consisting of a maximum of seven base transmission ur
each approximately 3’ x 3’ x 5’ high with a monopole and antennas as described in CUP 96-C
A security fence, consisting of chain link construction or similar but comparable constructit
shall be placed around the perimeter of the facilities of Cox. All improvements shall be at C
expense. The City will maintain the property in a reasonable condition.
2. (a) Be responsible for installing any equipment, at expense of Cox, to elimin
any interference that might be caused by its location of radio transmitting or telecommunicati
facilities or other equipment on the premises with the radio transmitting or telecommunicati
facilities of the Carlsbad Municipal Water District (“District”) and City (including but 1
limited to the City of Carlsbad Police Department Facilities), as well as other parties alrea
located on the Property at the commencement of this license agreement.
(b) The City reserves the right to enter into agreements with other parti
including but not limited to wireless communication carriers (hereinafter Tamers”) for use
the Ellery Reservoir site. In the event that an additional Carrier is licensed to use the site it st1
be the new Carrier’s responsibility, at its expense, to ensure that such installation is construct
and operated in accordance with applicable reguiations issued by the Federal Comrnunicatic
Commission (“FCC“), if any. If Carrier’s plans and specifications are approved by City, C
shall notify Cox in writing as to the scheduled date and time of commencement of constructi
and installation of Carrier’s transmittingh-eceiving equipment not less than five (5) business di
prior to such date. Any change to the additional Carrier‘s approved antenna type and locati
and/or change in transmitter types and power output shall be made compatible with Cox
Carrier’s sole expense.
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3. Be responsible for maintenance of any equipment and facilities installed on 1
premises by Cox, to comply with all City, County, FAA and FCC regulations.
4. Be responsible for its own equipment. Provide fire, theft and extended cover:
insurance for equipment and facilities installed for Cox.
5. (a) Be responsible for securing any necessary permits or conditional use pern
from any governmental agency to install any facilities of Cox on the Property. Cox n
substitute, modify and/or add to its conimunication/transmitting antenna located on the Prop€
from time to time, provided that Cox first obtains any and all required governmental appro\
for such substitution, modification and/or addition and the approval of City. Any change to (
approved antenna type, number of antennas, antenna location and/or change in transmitter t:
and power output shall, at the sole expense of Cox, be made in accordance with applicz
regulations issued by the FCC. If Cox plans and specifications are approved by City, Cox SI
notify ail other Carriers in writing as to the scheduled date and time of commencement
construction or installation of Cox modified equipment not less than five (5) business days p
to such date. 1
(b) It is understood and agreed that Cox ability to use and/or protect its interes
the Property is dependent upon Cox obtaining all of the certificates, permits and other appro.
which may be required from any federal, state or local authority, and any easements which
required from any third parties. City shall cooperate with Cox in its efforts to obtain s
approvals andor easements, as may be required for Cox facility as initially configured
approved in CUP 96-06. If (i) any application and/or negotiations by Cox for any s
certificate, permit, license, easement, approval, policy of title insurance, or agreement is fin
denied, rejected and/or terminated, (ii) any such certificate, permit, license, easenient, apprl
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or agreement is canceled, or expires, or lapses or is otherwise withdrawn or terminated, (iii) :
Hazardous Materials are discovered or otherwise become located on the Property, other than 2
direct result of Cox activities thereon, or (iv) due to technological changes, Cox determines t
it is no longer practical to use the Premises for Cox intended purposes, then Cox shall have
right to terminate this License Agreement, which termination shall be effective no sooner than
days from delivery of written notice from Cox to City provided Cox has removed all of
property and equipment from the premises by that time, subject to the provisions in paragr
eight of License's Obligations..
6. Be responsible for all utilities and any property taxes imposed as a result of the us(
the Property by Cox.
7. (a) Licensee understands and agrees that this licensing agreement may be revoke
any time in the future if the City determines for any reason that this license agreement is no
the best interest of the City, notwithstanding any investment of Cox in improving the prop
for its use.
The determination of license revocatip shall be within the sole discretion of the City. In
event the City's revocation of a license is not due to a breach by Cox of one of the condition
obligations provided for in this agreement, the City shall give Cox written notice of the necei
of removal of the said facilities one hundred eighty (1 80) calendar days prior to the effective
of the removal. Such removal or relocation shall be at the expense of Cox.
(b) If this license is revoked by the City due to a breach by Cox of one o
obligations herein, the revocation shall be effective upon receipt of written notificatioi
revocation and Cox shall remove all of its personal property and equipment from the Proy:
within sixty (60) days or the City may remove it and charge Cox for the cost of removal, SUI
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to the provisions of paragraph eight.
8. In the event either party terminates the Lease Agreement with the City
Carlsbad, or upon its expiration, Cox shall have the option to assign all rights and ownershiF
the monopole installed by Cox California PCS, Inc. to the Carlsbad Police Department or rest
the premises to it's original condition, pursuant to the provisions of the License Agreemc
including installing the current police tower now in place and removal of the monopole that I
installed by Cox California PCS, Inc.
9. If upon expiration or termination of this agreement Cox remains on the Property, (
shall pay rent at two times the then existing monthly rate until such time as Cox vacates
premises by removal of its personal property and fixtures.
10. Exercise due diligence in utilizing the Property of the City so as to not interfere P
utilization of the Property by the City, and Cox agrees to comply with any rules and regulati
that the District may promulgate at any time in reference to utilization of the Property by
party other than the City. It is understood by Cox that the Property is used by the City as a w,
storage reservoir and as a part of the Carlsbad Municipal Water District water transmiss
system of the City and that it is necessary to maintain adequate security at all times for
primary utilization of the Property by the District.
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1 1. Pay to City without abatement, deduction or offset the following rental on or bei
the first day of each month of this agreement:
(a) One Thousand Eight Hundred ($1,800) dollars per month for the first yea
this agreement.
(b) Commencing on the anniversary date of this Licensing Agreement in year
3, 4 and 5, said monthly rent shall increase as follows if the license is still in effect:
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One Thousand Eight Hundred Ninety ($1,890) dollars per month Year 2:
Year 3:One Thousand Nine Hundred Eighty-Five ($1,985)dollars and per rnontk
Year 4:TWo Thousand Eighty-Five ($2,085) dollars and per month.
Year 5:Two Thousand One Hundred Ninety ($2,190) dollars per month.
Monthly rents may be pro-rated as required. If the City desires to continue tl
license beyond five years, the rent amount shall be renegotiated at that time.
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(c) If any of the monthly rental payments are not received by the City by the ter
(10'") day of the month in which they are due, the rent shall be deemed delinquent and a ten (1
percent penalty on the sum owing shall accrue on the late payment. If Cox should becoi
delinquent on two or more months rent, in any twelve month period, the City may revoke t
agreement forthwith and demand removal of all personal property within ten (10) days,
remove such property itself and charge Cox for the cost of removal.
12. (a) Waive all claims against the District and/or City of Carlsbad for any damag
to the personal property and equipment of, in, upon or about the Property and for injuries to C
its employees or agents in or about the Property, from any cause arising at any time, except thc
arising from intentional wrong doing of the District, City or any employee or agent thereof, a
Cox will hold the City of Carlsbad ixempt and hamiless from any damage or injury to a
person, or any property, arising from the use of the Property by Cox, or from the failure of C
to keep its equipment and facilities in good condition and repair, as herein provided.
(b) Cox indemnification shall include any and all costs, expenses, attorneys fe
and liability incurred by the District and/or City of Carlsbad, its officers, agents, or employees
defending against such claims, whether the same proceed to judgment or not.
(c) Cox shall at its own expeiise, upon written request by the District and/or C
of Carlsbad, defend any such suit or action brought against the District and/or City of Carlsb:
its officers, agents or employees. Cox indemnification of the District and/or City of Carlsb
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shall not be limited by any prior or subsequent declaration by Cox.
13. Obtain and maintain for the duration of the contract insurance against claims
injuries to persons or damage to property which may arise out of or in connection with
agreement, its agents, representatives, employers or subcontractors. Said insurance shall
obtained from an insurance carrier admitted and authorized to do business in the State
California. The insurance carrier is required to have a current Best's Key Rating of not less t
"A-:V" and shall meet the City's policy for insurance as stated in City Council Resolution
91-403.
(a) Cox shall maintain the types of coverages and minimum limit indic;
herein, unless a lower amount is approved by the City Attorney or City Manap-:
1) Comprehensive General Liability Insurance. $1,000,000 combj
single-limit per occurrence for bodily injury, personal injury and property damage. If
submitted policies contain aggregate limits, general aggregate limits shall apply separately UI
this contract or the general aggregate shall be twice the required per occurrence limit.
2) Automobile Liability (for the use of an automobile by 1
employees or agents or subcontractors in conjunction with its use of the premises) $1,000.
combined single-limit per accident for bodily injury and property damage.
3) Worker's Compensation and Employer's Liability. Worl
Compensation limits as required by the Labor Code of the State of California and Emplo;
Liability limits of $1,000,000 per accident for bodily injury.
(b) Cox shall ensure that the policies of insurance required under this agreci.
contain, or are endorsed to contain, the following provisions:
1) The District and City of Carlsbad shall be designated as an additi
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insured on all policies excluding Worker's Compensation.
2) Cox shall fimish certificates of insurance to the City befi
commencement of work.
3) Cox shall obtain occurrence coverage, which shall be written as claix
made coverage.
4) This insurance shall be in force during the life of the agreement a
shall not be canceled without 30 days prior written notice to the City sent by certified mail.
5) If Cox fails to maintain any of the insurance coverages required here
then the City will have the option to revoke this license agreement, or may purchase replacem
insurance or pay the premiums that are due on existing policies in order that the requi
coverages may be maintained. Cox is responsible for any payments made by the Dlstrict or C
of Carlsbad to obtain or maintain such insurance and the District and City of Carlsbad IT
collect the same from Cox or deduct the amount paid from any sums due Cox under t
agreement .
14. Cox and City agree that they will not use, generate, store or dispose of a
Hazardous Material on, under, about or within the Property in violation of any law or regulatic
"Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substan
known by the State of California to cause cancer andor reproductive toxicity, andor a
substance, chemical or waste which is identified as hazardous, toxic or dangerous in a
applicable federal, state or local law or regulation. In the event of a breach of this provision
either party, the other may terminate this agreement forthwith and pursue any rcinedies to whl
it is entitled by law.
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I 5. Licensee understands and acknowledges that this license granted herein
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absolutely not assignable or transferable and any attempt to do so may result in a revocatior
the license at the will of the City.
LICENSOR’S OBLIGATIONS
City agrees to do the following:
1. Allow the construction of a base transmission units and installation of antennas on
Property for use of Cox as approved in City of Carlsbad CUP No. 96-06 attached hereto
“Attachment 1 ”.
2. Allow reasonable ingress and egress for Cox to the Property, including access ;
time in cases of emergency or
equipment failure.
3. Be responsible for its own equipment.
4. Grant any necessary easement coextensive with the terms of this license as requi
for extension of electric and telephone service to the site as specified in City of Carlsbad C
96-06.
5. Allow construction of pow^ line facilities to the site from existing facilities on
Ellery Reservoir site.
6. Permit Cox ingress and egress to the Property to conduct such surveys, structu
strength analysis, subsurface boring tests and other activities of a similar nature as Cox IT
deem necessary. AI1 such activities shall be at the sole expense of Cox. Cox agrees to h(
District and City and the Property free and harmless !?om any cost, claims and damages, act
or asserted, including costs of investigation and/or defense thereto connected in any way M.
said activities.
7. District and City and its agents and contractors shall have the right to enter 1
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Premises upon forty-eight (48) hours advance notice to Cox, during reasonable business hc
and when accompanied by personnel of Cox, for the purpose of making any necessary alterati
or repairs as provided in this License Agreement. In the event of an emergency, the no
requirement will be waived.
8. All notices under this License Agreement shall be in writing and, unless othen:
provided herein, shall be deemed validly given if sent by certified mail, return receipt reques
or via recognized overnight courier service, addressed as follows (or to any other mailing add1
which the party to be notified may designate to the other party by such notice). All noti
properly given as provided for in this section shall be deemed to be given on the date when se
Should District or Cox have a change of address, the other party shall immediately be notifiec
provided in this section of such change.
COX CALIFORNIA PCS, INC.:
18200 Von Kannan
Imine, CA 92612 Carlsbad, CA 92008
Attn: Robbic Frazicr Attn: Ray Patchett
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Title: City Manager
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with a copy to:
Carlsbad MuniciPal Water District
5950 El Caniino Real
Carlsbad. CA 92008
Attn: Robert J. Greanev
Title: General Manager
with a copy to:
Executed by Cox California PCS, Inc. this
COX CALIFORNIA PCS, INC.
day of , 1996.
CITY OF CARLSBAD
BY: BY:
Debbie S. Homing Raymond R. Patchett, City Manager
V.P. Technical Operations
The Carlsbad Municipal Water District, a
Municipal Corporation, hereby consents tc
the above Liccnsc Agreement and agrees 1
be bound by its temis to the extent that it
the Carlsbad Municipal Water District BY:
Stanley B. Crair (District”) and City affects the W;
District Vice President and General Manager the property used by the W;
District as the Ellery Reservoir Site.
Robert J. Greaney, General Manager
Carlsbad Municipal Water District ?
Approved as to form:
Ronald R. Ball, City Attorney
BY: QAk Bep&y City Attorney /I - /J-. 7~.
(Proper notarial acknowledgment of execution by Cox PCS, Inc. must be attached)
(President or vice-president and secretary or assistant secretaiy must sign for corporations.
only one officer signs, the corporation must attach a resolution certified by the Secretary
Assistant Secretary under corporate seal empowering that officcr to bind the corporation.)
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DEPICTION OF TKE PREMISES AND LESSEE'S IMPROVEMENTS
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ATTACHMENT 1
Page 1 of 4
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DEPICTION OF THE PREMISES AND LESSEE'S IMPROVEMENTS
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DEPICTION OF THE PREMISES
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DEPICTION OF THE PREMISES AND LESSEE’S IMPROVEMENTS
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ATTACHMENT 1
Page 4 of 4
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PLANNING COMMISSION RESOLUTION NO. 3975
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING A
CONDITIONAL USE PERMIT TO ALLOW THE
INSTALLATION OF SIX (6) GROUND MOUNTED
PERSONAL COMMUNICATION SYSTEM EQUIPMENT
CABINETS, SIX (6) PANEL ANTENNAS AND ONE (1) TEN
DICH OVAL ANTENNA MOUNTED ON A REPLACEMENT
MONOPOLE AT THE ELLERY RESERVOIR FACILITY AT
2237 JANIS WAY.
CASE NAME: PCS 150 MOUNT KELLY
CASE NO.: CUP 96-06
WHEREAS, Cox California PCS, Inc. (Developer) has filed a
application with the City of Carlsbad which has been referred to the Planning Commissio
WHEREAS, said verifkd application constitutes a request for a Conditio
Permit as shown on Exhibit “A” - “E”, dated August 21, 1996, on file in the F
Department and incorporated by this reference as provided by Chapter 21.42 of the (
Municipal Code; and
WHEREAS, pursuant to the provisions of the Municipal Code, the E
Commission did, on the 21st day of August 1996, hold a duly noticed public hearing to (
said application on property owned by the City of Carlsbad (Owner) described as:
Parcel 1 as now shown on Map No. 878, in the City of Carlsbad, County
of San Diego, State of California, filed in the Office of the County
Recorder of San Diego County, July 3,1972.
WHEREAS, at said public hearing, upon hearing and considering all te:
and arguments, if any, of all persons desiring to be heard, said Commission considered a1
relating to CUP 96-06.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the P
Commission of the City of Carlsbad as follows:
A) That the foregoing recitations are true and correct.
ATTACHMENT 2
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B) That based on the evidence presented at the public hearing, the Corn
APPROVES Conditional Use Permit, CUP 96-06, based on the fo
findings and subject to the following conditions:
Findings:
1. The Planning Commission finds that the project, as conditioned herein for CUI
is in conformance with the Land Use Element of the City’s General Plan, base(
following:
a. The provision of six ground mounted Personal Communication
equipment cabinets and seven antennas on the 54.5 foot high repla
monopole will be compatible with surrounding land uses on the sit
proposed project is consistent with the Residential Medium Low
General Plan designation in that the proposed use will allow COI
provision of wireless communication facilities for the community and
as a whole, including communication for pubIic safety entities. FurtI
utility land use is permitted in all zones subject to approval of a CUP.
2. The project is consistent with the City-Wide Facilities and Improvements P1
applicable local facilities management plan, and all City public facility polic
ordinances since all necessary public improvements have been provided
required as conditions of approval.
That the requested use is necessary or desirable for the development of the cornu
that the community benefits of PCS include, but are not limited to the followii
Wireless communication will improve telecommunication service by prc
mobile voice and data transmissions; (2) Potentially provide enhanced eme
response for police, fire and paramedic services; (3) Improve voice and data
through the use of all-digital technology, which will eliminate fading, droppii
crackIing that can interrupt regular wireless calls; (4) Provide one personal pc
phone number for voice, voice mail, pager, data, and facsimile; and (5) Th
facility has been designed to accommodate approximately 2460 calls at peal
capacity and provide service to the community within approximately 112 to 2
is essentially in harmony with the various elements and objectives of the General
that the General Plan and zoning designations on the site allow the loca
accessory public and quasi-public utility uses with approval of a conditio1
permit, and is not detrimental to existing uses specifically permitted in the zone ir
the proposed use is located, in that the replacement monopole with the addition
PCS antennas is sufficiently screened by the water tank, mature landscaping :
the property’s perimeter, and the surrounding topography, so as not to be \
intrusive or incompatible with adjacent residential land uses.
That the site for the intended use is adequate in size and shape to accommodate the
that the ground mounted equipment will be sufficiently screened by a retainin
the water tank, and the surrounding topography, and will not obstruct the dri
access around the water tank.
PC RES0 NO. 3975 -2-
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5. That all the yards, setbacks, walls, fences, landscaping and other features nece
adjust the requested use to existing or permitted future uses in the neighborhood
provided and maintained, in that no adjustments are necessary to allow the pro,
be located within the property boundaries.
That the street system serving the proposed use is adequate to properly handle ai
generated by the proposed use, in that no significant additional traffic
generated by the installation of the Personal Communication System equ
cabinets and antennas.
The Planning Commission of the City of Carlsbad has reviewed, analy;
considered the Negative Declaration, the environmental impacts therein identi
this project and any comments thereon prior to approving the project. BaseG
EIA Part-I1 and comments thereon, the Planning Commission finds that the1
substantial evidence the project will have a significant effect on the environm
thereby approves the Negative Declaration.
The Planning Commission finds that the Negative Declaration reflects the inde
judgment of the Planning Commission.
The Planning Commission finds that all feasible mitigation measures or
alternatives identified in the General Plan MEIR 93-01 which are appropriate
Subsequent Project have been incorporated into this Subsequent Project.
6.
7.
8.
9.
Conditions:
1. The Planning Commission does hereby approve the Conditional Use Permit
Project entitled "PCS 150 Mount Kelly" (CUP 96-06), subject to the conditions
set forth. Staff is authorized and directed to make or require the Developel
California PCS, Inc., to make all corrections and modifications to the Condition
Permit documents, as necessary to make them internally consistent and cod
Planning Commission's final action on the Project. Development shall
substantially as shown on the approved exhibits. Any proposed develc
substantially different from this approval, shall require an amendment to this appro
The Developer shall comply with all applicable provisions of federal, state an1
ordinances in effect at the time of building permit issuance.
2.
3* This Conditional Use Permit is granted for a period of five (5) years. This Cond
Use Permit shall be reviewed by the Planning Director on a yearly basis to deten
all conditions of this permit have been met and that the use does not have a sub:
negative effect on surrounding properties or the public health and welfare.
Planning Director determines that the use has such substantial negative effec
Planning Director shall recommend that the Planning Commission, after providi
permittee the opportunity to be heard, add additional conditions to reduce or elimin
substantial negative effects. This permit may be revoked at any time after a
hearing, if it is found that the use has a substantial detrimental effect on surroundin
9 PC RES0 NO. 3975 -3 -
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uses and the public's health and welfare, or the conditions imposed herein have n
met. This permit may be extended for a reasonable period of time not to exceed
years upon written application of the permittee made no less than 90 days prio
expiration date. The Planning Commission may not grant such extension, unless
health and welfare. If a substantial negative effect on surrounding land use:
public's health and welfare is found, the extension shall be denied or grant1
conditions which will eliminate or substantially reduce such effects. There is no
the number of extensions the Planning Commission may grant.
The Developer shall report, in writing, to the Planning Director within 30 da
address change from that which is shown on the conditional use permit application
5. Approval of CUP 96-06 is granted subject to the approval of the IN
that there are no substantial negative effects on surrounding land uses or the
4.
Declaration.
Prior to the issuance of buiIding permits, the owner shall submit to the City a N
Restriction to be filed in the office of the County Recorder, subject to the satisfac
the Planning Director, notifying all interested parties and successors in interest
real property owned by the City of Carlsbad. Said Notice of Restriction shall n
property description, location of the file containing complete project details 3
conditions of approval as well as any conditions or restrictions specified for inch
the Notice of Restriction. The Planning Director has the authority to execute and
an amendment to the notice which modifies or terminates said notice upon a shoi
good cause by the owner or successor in interest.
The Developer shall provide the City with a reproducible 24" x 36", mylar copy
Site Plan as approved by the Planning Commission. The Site Plan shall refl
conditions of approval by the City. The Plan copy shall be submitted to tl
Engineer and approved prior to building, grading, final map, or improvemer
submittal, whichever occurs first.
The Developer shall include, as part of the plans submitted for any permit plan c
reduced, legible version of the approving resolution on a 24" x 36" blueline dl
Said blueline drawing(s) shall also include a copy of any applicable Coastal Develc
Permit and signed approved site plan.
The DevelopedOperator shall comply with ANSUIEEE standards for EMF em1
Within six (6) months afier the issuance of occupancy, and annually thereaft
Developer/Operator shall submit a project implementation report which p.
cumulative field measurements of radio frequency (EMF) power densities of all ar
installed at the subject site. The report shall quantify the EMF emissions and c(
the results with currently accepted ANSI/IEEE standards. Said report shall be sut
review and approval by the Planning Director for consistency with the P
preliminary proposal report and the accepted ANSUIEEE standards. If on revk
City finds that the Project does not meet ANSIIIEEE standards, the City may re\
6.
City of Carlsbad has issued a Conditional Use Permit by Resolution No. 3975
7.
8.
9.
PC RES0 NO. 3975 -4-
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e 0 modify this conditional use permit.
The DeveloperlOperator shall and does hereby agree to indemnify, protect, defe
hold harmless the City of Carlsbad, its Council members, officers, employees. ager
representatives, from and against any and all liabilities, losses, damages, demands.
and costs, including court costs and attorney's fees incurred by the City arising, (
or indirectly, from (a) City's approval and issuance of this Conditional Use Pen
City's approval or issuance of any permit or action, whether discretionary (
discretionary, in connection with the use contemplated herein, ar
Developer/Operator's installation and operation of the facility permitted hereby, in
without limitation, any and all liabilities arising from the emission by the fac
electromagnetic fields or other energy waves or emissions.
10.
Engineering Conditions:
1 1. Prior to hauling dirt or construction materials to or fi-om the site, the applicant shal
submit to and receive approval from the City Engineer for the proposed haul route
applicant shall comply with all the conditions and requirements the City Engineer
impose with regards to the hauling operation.
12. Prior to building permit issuance, the Developer shall indicate the j
quantities on Sheet A-2 (Grading Plan) of the conforming site plan.
Fire Conditions:
13. Prior to issuance of Building Permits, the Developer shall submit to the Fire Dep
building plans for Fire Department determination of conformance with applicable
life safety requirements of the state and local fire codes.
Plans and/or specifications for fire alarm systems, fire hydrants, automatic fire SF
systems and other fire protection systems shall be submitted to the Fire Departr
approval prior to construction.
14.
General Condition:
15. If any of the foregoing conditions fail to occur, or if they are, by their term
implemented and maintained over time, if any of such conditions fail tc
implemented and maintained according to their terms, the City shall have the
revoke or modify all approvals herein granted, deny or further condition issuani
future building permits, deny, revoke or further condition all certificates of oc
issued under the authority of approvals herein granted, institute and prosecute litil
compel their compliance with said conditions or seek damages for their violati
vested rights are gained by Developer or a successor in interest by the City's apy
this Resolution.
PC RES0 NO. 3975 -5-
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Code Reminders:
16. This approval shall become null and void if building permits are not issued
project within 18 months from the date of project approval.
Approval of this request shall not excuse compliance with all applicable section
Zoning Ordinance and all other applicable City ordinances in effect at time of 1
permit issuance, except as otherwise specifically provided herein.
17.
PASSED, APPROVED AND ADOPTED at a regular meeting of the F
Commission of the City of Carlsbad, California, held on the 21st day of August 1996.
following vote, to wit:
AYES: Chairperson Compas, Commissioners Heineman, h
Nielsen, Noble, Savary and Welshons
NOES: None
ABSENT: None
ABSTAIN: None
h/&. b$/
WILLIAM COMPAS, Chaiderson
CARLSBAD PLANNING COMMISSION
ATTEST:
b&& 3 l-\u* ,a
MICHAEL J. HOLZMIL~ER
Planning Director
PC RES0 NO. 3975 -6-
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PLANNING COMMISSION
NOTICE OF DECISION
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i if jl:
t !;E I &:b? h =fi .=
E?’-.- =--- __ ----- - L - - - - - ~ _____
August 27,1996
Stephen M. Lau
JM Consulting Group
Suite 101
3530 Camino Del Rio North
San Diego CA 92108
-. . 3 -i -*L. &kL --
------_
SUBJECT:
At the Planning Commission meeting of August 2 1, 1996. your application was considered. The
Commission voted 7-0 to RECOMMEND APPROVAL of your request. Some decisions are
final at Planning Commission, and others automatically go forward to City Council. If YOU have
any questions regarding the final dispositions of your application, please call the Planning
Department at (619) 438-1 161.
Sincerely,
CUP 96-06 - PCS 150 MOUNT KELLY
,
, I\ ’ bb+& (I
MICHAEL J. HOLZMILLER
Planning Director
LMMJH:JG:kr
Enclosed: Planning Commission Resolution No. 3974 and 3975
ATTACHMENT 3
2075 Las Palmas Dr. Carlsbad, CA 92009-1 576 (61 9) 438-1 161 - FAX (61 9) 438-0894
LOCATION MAP
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PROJECT NAME: COX CALIFORNIA CPS, INC,
ATTACHMENT 4
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SECRETARY’S CERTIFICATE
\
I, Andrew A. Merdek, being the duly elected and acting Secretary
of Cox California PCS, Inc., a Delaware corporation (the “Corporation”), do
hereby certi@ that the following resolutions were duly adopted by the Board of
Directors of the Corporation by Unanimous Written Consent dated as of October
18, 1996, and that such resolutions have not been rescinded, amended or modified
and are in full force and effect:
RESOLVED, That the Corporation is authorized to lease that
certain water tank located at 2237 Janis Way, Carlsbad, California 92008
(the “Property”) from the City of Carlsbad, 1200 Carlsbad Village Drive,
Carlsbad, California (the “Lessor”), in accordance with the terms and
conditions of the lease agreement (the “Lease”); and
FURTHER RESOLVED, That any one of Stanley B. Crair, Vice
President and General Manager, and Debbie S. Horning, Vice President-
empowered, for and on behalf of the Corporation, to enter into, execute
and deliver a Lease, between the Corporation, as Lessee, and the Lessor,
whereby the Corporation agrees to lease the Property in accordance with
the terms and conditions of the Lease; and
Technical Operations, be, and hereby is, authorized, directed and
FURTHER RESOLVED, That the aforesaid officers of the
Corporation, be, and hereby are, authorized, directed and empowered in
the name and on behalf of the Corporation to take any and all actions and is
authorized to execute any and all instruments, documents or filings in
connection with the consummation of the transaction outlined in the
previous resolutions; and
FURTHER RESOLVED, That all actions of the aforesaid officers
in connection with the Lease are ratified, confirmed and approved and
declared to be the actions of the Corporation as of the date of each such
action; and
.
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FURTHER RESOLVED, That any act of any officer of the
Corporation, or any person or persons designated and authorized to act by
an officer of the Corporation, which act would have been authorized by the
foregoing resolutions except that the act was taken prior to the adoption of
the foregoing resolutions, is hereby ratified, confirmed, approved and
adopted as an act in the name and on behalf of the Corporation; and
FURTHER RESOLVED, That the foregoing resolutions shall
remain in full force and effect until such time as the lease of the Property
has been consummated; and
FURTHER RESOLVED, That the Secretary of the Corporation be,
and hereby is, authorized, directed and empowered to certifj and furnish
copies as may be necessary of this and the foregoing resolutions and
statements as to the incumbency of the corporate officers of the
Corporation, if requested, and any person receiving such a certified copy is
and shall be authorized to rely upon the contents thereof
IN WITNESS WHEREOF, I hereunto placed my hand and affixed the seal
of the Corporation this 22nd day of October, 1996.
[Corporztl; Seal)
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ADDENDUM TO LICENSE AGREEMENT
This Addendum to License Agreement is executed by the City of Carlsbad (“City”) and Cox California PCS, Inc., a Delaware corporation (“Cox”), along with the license agreement, in view of the following recited facts:
1. City is the owner of real property more specifically identified as
Assessor’s Parcel No. 167-540-52, commonly known as Ellery Reservoir Site (the
“Property”).
Under CUP 96-06, City is entering into a License Agreement with Cox (the “License”) pursuant to which City will license Cox to use a portion of the Property for
constructing, maintaining and operating a telecommunications facility consisting of a maximum
of seven base transmission units each approximately 3’x by 3’x by 5’ high with a monopole and antennas as described in CUP 96-06, and to install a security fence around the perimeter of the facility.
2.
3. Section 14 (page 8) of the License prohibits the assignment of the
The telecommunications facility is part of a PCS communications system (the “System”) installed by Cox in the Los Angeles-San Diego MTA under a license from the Federal Communications Commission (the “FCC License”). Cox desires to assign the FCC License and the System to a limited partnership (the “Partnership”), namely Cox California PCS, L.P., which will initially include as partners, inter alia, Sprint Spectrum and one or more direct or indirect subsidiaries of Cox Enterprises, Inc. The Partnership will operate the System under the FCC License and in doing so will also hold all of the individual telecommunications facility sites that make up the System.
License.
4.
5. Cox desires to assign this site to the Partnership at the time the FCC License is transferred to the Partnership.
6. City intends to consent to this contemplated assignment to the Partnership
only because it is pending at the time that the license agreement is initially being executed.
LA\962680060
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7. Notwithstandmg paragraph 14 on page 8 of the License, Licensee is authorized and permitted to assign this License to Cox California PCS, L.P., the Partnership that will be the transferee of the FCC License for operation of the PCS telecommunications
system in the Los Angeles - San Diego MTA, provided that no other such assignment shall be
permitted and paragraph 14 on page 8 of the License shall remain in full force and effect as to
all other assignments or attempted assignments.
IN WITNESS WHEREOF, this Addendum to License Agreement has been executed as of , 1996.
w
CITY OF’ CARLSBAD
By: Raymond R. Pachett, City Manager
The Carlsbad Municipal Water District, a Municipal Corporation, hereby consents to the above Addendum to License Agreement and
agrees to be bound by its terms to the extent that it the Carlsbad Municipal Water District (“District”)
and City affects the Water District as the Ellery Reservoir Site.
By:
Robert J. Greaney, General Manager, Carkbad Municipal Water District
COX CALHFORNIA, PCS, INC.
By:
Debbie S. Horning,
V.P. Technical Operations
By: Stanley B. Crair, Vice President and General Manager
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